Opposition Brief — Air Line Pilots Ass'n v. Piedmont Aviation, Inc.

Supreme Court brief1970

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INDEX

COUNTERSTATEMENT OF THE CASE ........ 1

The Airlines’ Transition To Twin Jet Aircraft... 1

The Union’s Decree — No Additional Two-Man

Crews And No Bargaining On The Subject... 2

The Union’s Adamant Refusal To Bargain... .. .3

_The Union’s Lawsuit For “Breach Of

Contract” ...... Cy Ph ee sa ht alee Ate 5

The Proceedings Before The Courts Below ..... 6

SUMMARY OF ARGUMENT ..............:.... 7

I a er ee ee 9

- I, There Is No Reason For Issuanice OfA

Writ Of Certiorari................... 9

A. The Petition Is Premature... .. . ...10

B. There Is No Conflict Among The |

Courts Of Appeals..............: .14

1. The Asserted Conflict With

Second Circuit Decisions ........ 15

2. Procedural. Cases From

emer SPOS i ew en 20

II. The Courts Below Were Not Bound

By The Obiter Dictum Of The District

Court For The District Of Columbia ..... 24.

III. The Decision Below Is Entirely Con-

sistent With Principles Enunciated By

This Court And Is Fully Supported By

Other Court Precedents............... 28

CONCLUSION ......... Se en ei AT yr te 40

TABLE OF AUTHORITIES

Cases: : Page

Air Line Pilots Ass’n. v. Quesada, 182 F. Supp.

595 (S.D. N.Y.), aff'd., 276 F. 2d 892 (2nd

Cir. 1960).-..... Sih eg Nie ea 4 to 1c Reem 31

American Airlines. Inc. v. Air Line Pilots :

Ass’n., 169 F. Supp. 777 (S.D. N.Y. 1958) .....38-

American Airlines, Inc. v. Transport Workers

Union, 202 F. Supp. 806 (S.D. N.Y. 1962) ..... 38 .

Berenyi v. Immigration and Naturalization

Service, Soa tas. Goo (1001) oo ee. 19

Blue Diamond Coal Co. v. United Mine

Workers, 282 F. Supp. 562 (E.D. Tenn. 1968) . 22

Bowles v. Wilke, 175 F. 2d 35 ¢7th Cir. ), cert.

den., 338 U. S. 861 (1949) .............. 25, 27

Brotherhood of Locomotive Firemen &

Enginemen v. Central of Georgia Ry., 411 F. yi

2d cae (Gta Cir. 1960) 20] ome 9,23 /

Brotherhood of Locomotive Firemen and

Enginemen v. Bangor & Aroostook R.R., 380.

Bae Or tO, TOG 1) hee S 37

Brotherhood of R. R. Trainmen v. Akron &

Barberton Belt R. R., 385 F. 2d 581 (D. C. Cir.

- 1967), cert. den., 390 U: §. 923. (1968) ..:.. 36, 39

Brotherhood of R. R. Trainmen v. Chicago

River & Indiana R. R., 353 U.S. 30. (1957) .-.. 35

Brotherhood of R. R. Trainmen v. Jacksonville

Terminal Co., 394 U. S. 369 (1969) .......... 29

Brotherhood of R. R. Trainmen 7g. Toledo,

Peoria & Western R. R., 321 U.S. 50 (1944) . :. .38

Page

Chicago, Burlington & Quincy R. R. v. Railway

Employes’ Dept., — F. Supp. —, 60 LC $10,071

— (D. D. C. | F beppea eet aoa MOA il ee Pia ‘hy oo

Chicago, Rock Island and Pacific R. R. Vv.

Switchmen’s Union, 292 F. 2d 61 (2nd Cir.

Res ee ee tie 8,15, 16

Cohen v. Virginia, 6 Wheat. 264 (1821) . ... 26

Crosley Corp. v. Hazeltine Corp., 122 F. 2d

ae te ee ot 9, 23

Delaney v. United States, 263 U. S. 586 (1924),

quoted in United States v. Johnson, 319 °

Mite RD i OS on 6 ec heat 19

- Hilton Hotels Corp. v. Weaver; 325 F. 2d 1010

EUG Si ee AS 8 RR Ae er cee Or eae 9, 22

Hunter v. Atchison, T. & S. F. Ry., 188 F. 2d

SO ee ee ee et 27

Long Island R. R. v. Brotherhood of R. R.

Trainmen, 185 F. Supp. 356 (E. D. N. Y. 1960) . 32

Majure v. National Labor Relations Board,

198 F. 2d 735 (5th Cir. 1952) ....... eS 34

_ Mazinski v. Dight, 99 F. Supp. 192 (W. D. Pa.

re ni os oS 22

Meiselman v. Paramount Film Distributing

Corp., 180 F. 2d 94 (4th Cir. 1950) .......... 14

Messinger v. Anderson, 225 U. S. 436 (1912) .. 26

National Labor Relations Board v. Berkley

Machine Works & Foundry Co., 189 F.2d 904 —

CO ey ek ee ye eis 34

National Labor Relations Board v. Darlington

Veneer Co., 236 F. 2d 85 (4th Cir. 1956) ...... 33

; : : 3 Page

National Labor Relations Board v. Israel

Putnam Mills; 197 F. 2d 116 (2nd Cir. 1952) .

New York Central R. R. v. United States, 200

F. Supp. 944 CB. 3): INT BOR) ob a 2a

Norfolk & Portsmouth Belt Line R. R. v.

Brotherhood of R. R. Trainmen, 248 F. 9434 .

ee a Ee aS 37

Order of R. R. Telegraphers v. Chicago and

North Western R. R., 362 U.S. 330 (1960)... 35

Osaka Shosen Kaisha Line v. United States,

OOD US Oe (17 ei I eet okt 26

Pan American World Airways, Inc. v.

Brotherhood of Ry. and S. S. Clerks, 185 F.

Supp. 350 (E. D.N. Y. iat SRS ee et eee 33

Pan American World Airways, Inc. v. Flight

Engineers Int'l. Ass’n., 306 F. 2d 840 (2nd

BD | it Sai aM Re hae BN aco as We Rese Ee ea 8, 20

Pan American World Airways, Inc. v.

International Brotherhood of Teamsters, 275 |

F. Supp. 986 (S. D. N. Y. 1967), affirmed on

the basis of the opinion below sub. nom.

Brotherhood of Ry. Clerks v. Pan American

World Airways, Inc., 404 F. 2d 938 (2nd

Be age |S BRR Ro ear Cian dee Teed Dit riylinde eo Sets 37

Pennsylvania R. R. v. Transport Workers

Union, 191 F. Supp. 915 (E. D. Pa.) aff'd.,

280 F. 2d 343 (3rd Cir. 1960) ........,...... 37

Pennsylvania R. R. v. Transport Workers |

Union, 202 F. Supp. 134 (E. D. Pa. 1962) .:... .38

Sims v. Central Trust Co., 123 F. 2d 89 (4th

Cit; FORT). ss SO ae Oe Eas on ee 14

Page

Singer Mfg. Co. v. National Labor Relations .

Board, 119 F. 2d 131 (7th Cir. 1941) ...... ene

Southern Ry. v. Brotherhood of Locomotive

Firemen and Enginemen, 223 F. Supp. 296

(M. D. Ga. 1962), aff’d., 324 2d 503 (5th

CO Te ee ee ne Ra ec re nea 38

Texas Gulf Sulphur Co. v. Ritter, 371 F. 2d

145 (OR Ce. 267) oe ok ore aa 0°

Texas & New Orleans R. R. v. Brotherhood of .

Ry. & S. S. Clerks, 281 U. S. 548 (1930) ....... 19

Toti v. Plymouth Bus Co., 281 F. Supp. 897

(3. BY. BR) es se Re aes Oaks Po

United States v. United States Smelting,

Refining & Mining Co., 339 U. S. 186, reh.

den., 339 U.S.972 (1950) ..... OSs sex Seapets 27

Virginian Ry. v. System Federation No. 40,

S00 UB. BAS CS ee eee 19, 29

_ Western Air Lines, Inc. v. Flight Engineers

Int'l. Ass’n., 194 F. Supp. 908 (S. D. Cal. 1961) . 37

Wright v. United States, 302 U.S. 583 (1938) =

Statutes:

_ Federal Aviation Act of 1958, Bie

SGOLCD 40 UC. SISGID) 2 oo ee 31

Norris-LaGuardia Act, ; M3

§7, 29 U.S.C. §107 ........ sei ceraeas ene 18

Railway Labor Act, ete f

Oe ee Se ia ae eae 28, 29

Use Pee Meet ae 3.

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INTHE —_

Supreme Court of the United States

OCTOBER TERM, 1969 °

NO. 995

AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, becabouoe

| i \

PIEDMONT AVIATION, INC..

Respondent.

On Petition for Writ of Certiorari ~\

BRIEF-OF PIEDMONT AVIATION, INC. \

IN OPPOSITION \

COUNTERSTATEMENT OF THE CASE

The Airlines’ Transition To Twin Jet Aircraft

Approximately ten years ago, twin turbine-powered

transport aircraft were introduced into the air carrier

industry (Saunders,' p. 1, 2). These short-haul air-

craft were designed and manufactured for operation

by a crew complement of two people, a pilot and co-

pilot (Saunders, Supp., pp. 1-3 §§ 1-4; Tadlock, pp. rt

1-2, §§1-2). They were exhaustively tested and cer-

tified by the Federal Aviation Agency for safe opera-

1Affidavits of record are referred to by the last names of the

affiants.

tion by such a crew complement (Saunders, pp. 2-3,

§4; Tadlock, p. 2, 92). |

By late 1965, the majority of domestic air carriers,

including Piedmont’s principal competitors, had pur-

chased and were utilizing these aircraft (Saunders,

_-p. 2, 93; p. 7, 913). At that time, after having made

a thorough evaluation of its own, Piedmont ordered

twelve Boeing 737 turbo jets to be delivered in 1968

at a cost in excess of $40,000,000 (Saunders, p. 3, 96;

- p. 8, 916).

, At various times during this period, the airlines

which purchased such jets bargained with the peti-

tioner, Air Line Pilots Association, on crew comple-

ments for the new jet equipment. Such bargaining

invariably resulted in contracts providing for opera-

tion by a two-man crew (Saunders, p. 2, §3; p. 5, 99;

p. 7,'9912-13). The Union continued, by contractual

arrangements, to approve two-man crew comple-

ments until after mid-year 1966.

The Union’s Decree — No Additional Two-Man Crews

And No Bargaining On The Subject

At a private convention in August 1966, by amend-

ment to its constitution, the Union issued a “manda- _

tory, policy” which directed that “all future turbine-

powered transport aircraft will be . . . manned by a_

minimum crew of three pilots” (Saunders, p. 5, 99;

Tadlock, Exhibit C ). Elsewhere, the Union’s constitu-

tion ordered its negotiators to “function” in accord-

‘ance with such “policy” and provided for fines, sus-

pension or expulsion of any member who might vio-

late such order (Saunders, p. 4, §8). ~ |

~The Union’s edict was issued unilaterally, without

any actual notice. to: Piedmont, approximately one

year before any notice such'as is required by Section

6 of the Railway Labor Act, 45 U.S.C. § 156, was

served by either party with respect to jet crew com-

plements. y

The Union’s Adamant. Refusal To Bicgiin

Pursuant to Section 6 notices, which were served ..

by the parties on July 27 and 28, 1967, the subject of

crew complement for Piedmont’s forthcoming jets

was raised at bargaining sessions in the Fall of that

year (Bradley, pp. 1-2, §§3-5). The Union's initial

proposal was accompanied by “assertions that com-

pulsory policy of the Union as established in its by-

_law ‘bound’ its negotiators to refrain from bargaining = -

for operation of the Boeing 737 by a two-man crew”

(Bradley, p. 2, 95).

Thereafter, the parties met in numerous bargaining

sessions up to July 24, 1968 (Bradley, pp. 2-3, 96).

Throughout all of these sessions, the Union’s negoti-

ators consistently, steadfastly and repeatedly advised

the Company that they “would not bargain for a crew

of less than three men, because the Union’s constitu-

tion and by-law policy forbade such bargaining over

that subject” (Saunders, p. 6, §11; Tadlock, p. 2, §3;

Bradley, pp. 1-4,9§2, 5, 7). During these meetings the

Union’s chief negotiator admitted to Piedmont repre-

sentatives that even “. . . if the committee signed a

two-man contract with Piedmont, such contract

' would be rejected by the Union’s President” (Saun-

ders, p. 6, §11). None of the foregoing has been denied

by the Union.

Finally, on July 24, 1968, it was agreed that bar-

gaining sessions would be suspended pending a de-

cision on arbitration of a similar issue between the

Union and United Air Lines. That agreement pro-

vided that in the event the arbitration decision re-

'. quired a three-man complement on United planes,

Piedmont and,the Air Line Pilots Association would

“reopen negotiation[s]. under the’ provisions of the

Railway Labor Act for 3-man operations and rates

of pay” ( Shipton, Exhibit B; Saunders, p. 9, 918).

_ The United arbitration decision was handed down

in two parts on February 10 and 22, 1969. This deci-

sion left the issue unresolved and called for further

evaluation and a new arbitration in the event agree-

ment was not reached between United and the Union

(Kozak, Exhibits D and E).

Shortly after issuance of that decision, meetings

were resumed between Piedmont and the Union.

However, the Union continued in its flat refusal to

bargain, adding as an attempted justification for such

refusal, a claim that it understood the July 24 agree-

ment to constitute a requirement that Piedmont was

bound to operate with a three-man crew without bar-

gaining (See Savelson, Exhibit A, p. 3, allegation

12).

In the Spring of 1969, pilot unrest over the failure

of the parties to ‘settle the issue became intensified

to a point that the Union felt it necessary to make an

explanation. On May 20, Master Executive Council

Chairman Kozak wrote a letter to all pilots (Tadlock,

Exhibit C). Kozak, acknowledging that the crew com-

plement .issue was a serious problem, quoted the

Union’s “mandatory crew manning policy” and the

constitutional restriction which limited decision-mak-

ing power of union negotiators to those items not

“provided [for] elsewhere in the Constitution and

By-Laws.” After listing the penalties for disobedience

of the Union’s policy, Kozak summarized: “These are

just the hard, cold facts. . . . Our latitude in resolving

this particular problem is see! limited.’

The Union’s Lawsuig F or “Aypach of Contract”

On the basis of its. ‘claim that Piedmont was bound

to a, three-man crew by.the July 24, 1968 agreement,

the Union instituted suit in the United States District

Court-for the District of Columbia on June 30, 1969

(Savelson, Exhibit A). In its complaint, the Union

characterized that document as a “collective bargain-

ing agreement” which required “that Piedmont’s

Boeing 737 aircraft would continue to be operated

with a three pilot crew” (Savelson, Exhibit A, p. 3,.

§911-12). With its complaint, the Union moved for

a preliminary injunction“. . . directing defendant

[Piedmont] to operate Boeing 737 aircraft with a

three pilot crew complement” (Savelson, Exhibit A,

p. 9, §1(b) ). That motion was denied by Judge Corco-

ran upon affidavits and without testimony or oppor-

tunity for presentation of testimony and cross ex-

amination of witnesses (Savelson, p. 2, 94; Exhibit

F). Piedmont has never sought any relief on its

pleadings in the District of Columbia case and there

has been no hearing on that subject.

3 oe |

The Proceedings Before The Pal Below.

The instant case was initiated in the District Court

in North Carolina upon complaint of Piedmont that

#he Union’s unilateral action in ordering that jet

aircraft be flown only by minimum crews of three

pilots, coupled with its refusal to bargain on the

subject, was a direct violation of the requirements of ©

Section 2 of the Railway Labor Act, 45 U.S.C. §152.

There has been no testimony or cross examination of

witnesses in the case.' Piedmont’s motion for a pre-

liminary injunction was granted upon the basis of

documentary evidence and affidavits only.

The Union moved for a stay of the injunctive order.

In denying such motion, the District Judge offered the

alternative of: an expedited trial on the merits. The

Union rejected’ the Court’s offer (App.,? p. 1) and

elected to appeal immediately.

The Court of Appeals below “accelerated this inter-

locutory appeal” (Pet. App.,’ p. 2a) and amended the

1By tacit consent of the Court and the parties, Section 7 of the

Norris-LaGuardia Act, 29 U.S.C. $107, requiring testimony in

open court was waived (Appendix to the Petition, p. 6a, fn. 7).

?Appendix to this brief. 7

SAppendix to the Petition for Certiorari.

District Court’s order by adding “. . . as a condition to

injunctive relief, maintenance of working conditions

and established practices in existence before the

strike, including three-pilot crews and the rate of pay

in effect on July 20, 1969” (Pet. App., p. 9a). Thus,

that part of the order accords to the Union precisely

the same relief which it sought in its motion in the

District of Columbia case. :

SUMMARY OF ARGUMENT

This Court does not disturb factual determinations

of lower courts in cases where there is no showing:

of very obvious and exceptional error. No such error

has been shown to exist in this case. The composite

findings of the District Court and the Court of Appeals

below that the Union violated the compulsory bar-

gaining requirements of the Railway Labor Act are

supported by an abundance of evidence which, for the

most part, is uncontradicted. The Air Line Pilots

Association, therefore, is bound by that factual deter-

mination on this interlocutory appear.

As amended by the Court of Appeals, the injunctive

order bars removal by Piedmont Aviation, Inc. of the

disputed third crewman from its jet equipment. The

Union has sought precisely such an order against

Piedmont in a lawsuit of its own in the District Court

for the District of Columbia. In that case, the Union

contended that the status quo ante should be main-

tained until the rights of the parties had been adjudi-

cated. That is exactly the purpose and effect of the .

order for which the Union now petitions this Court

for a writ of certiorari. -

The Court of Appeals remanded the case with di-

rections for the District Court to resolve the thresh- .

hold question of whether the Court has jurisdiction.

Resolution of that issue, as well as other unsettled

issues in the case, could result in a disposition of the

controversy without a trial on the merits. Accord-

ingly, the case is not ripe for review by this Court and

thé petition is premature. |

There is no authority from any source which sup-

ports the Union’s contention that a finding that it

__ has refused to bargain was precluded in this case by

‘obiter dictum ‘of the District Court for the District

of Columbia in the Union’s case, which recited that

“the parties” have bargained in good faith.

The Union’s assertion that the decision in this case

is in conflict with decisions from other -courts of

appeals is without any foundation. It cites only two

cases involving-the Railway Labor Act' to support

. its contention. In each of those cases, the Court: of

Appeals for the Second Circuit held that no injunc-

tion should be granted because, and only because,

it was found that the union had not failed to bargain

in good faith, which is precisely contrary to the find-

ing of the Courts below in the instant case.

~ 1Chicago, Rock Island and Pacific R. R. v Switchmen’s Union,

‘292 F. 2d 61 (2nd Cir. 1961); Pan American World Airways, Inc.

v. Flight Engineers Int'l. Ass’n., 306 F. 24.840 (2nd Cir. 1962).

All other cases cited by the Union’ to support its

claim that’ conflict exists involved procedural .ques-

tions of venue only. In each of those three cases, the

court of. appeals. reviewed a discretionary ruling of

the district court and in each the result was controlled

by the facts.peculiar to that case. In-this, case, the

discretionary ruling of the District Court has been

_ reviewed and sustained by the Court of Appeals.

There is.no conflict with the decisions from other

circuits, and it is well settled that this Court will not

review such devisions. »

Issuance of the injunctive order below is in accord

with, and is fully supported by, pronouncements of

this Court and numerous decisions of various courts

of appeals and district courts. These decisions uni-

formly hold that the Railway Labor Act takes prece-

. dence over the Norris- ‘LaGuardia Act and refute the

Union's contention that the District Court was pre-

cluded by the Norris-LaGuardia Act from issuing the

injunctive order in this case.

| ARGUMENT

I. There Is No Reason For Issuance Of A ~

Writ Of Certiorari

The central, all-pervading and ultimately deter-

minative question in this case is whether the Union

1Hilton Hotels Corp. v. Weaver, 325 F. 2d 1010 (D. C. Cir.

1963); Crosley Corp. v. Hazeltine Corp., 122 F. 2d 925 (3rd Cir.

1941); Brotherhood of Locomotive Firemen & Enginemen v.

Central of Georgia Ry.; 411 F. 2d 320 (Sth’Cir. 1969).

fulfilled its collective bargaining obligations under

Section 2 First and Second of the Railway Labor Act,

45 U.S.C. §152 First and Second, and thereby ex-

hausted all remedies therein provided, before it took

strike action against’ Piedmont. The injunctive order

of which the Union complains was issued to preserve

the status quo“ante pending resolution of that crucial

question by the Court below. :

Yet it will readily be observed that the Union has

not even addressed itself to that question in its peti-

tion to this Court. The Union, instead, has avoided.

the real issue and has proceeded throughout ‘its pe-

tition on the totally unwarranted assumption that it

has been judicially established that the Union bar-

gained collectively and in good faith at all times and

has thereby exhausted all remedies provided for in

the Act. Its often repeated naked assertions that all

such remedies have been fully exhausted are coupled

with a recitation to the Court of mere contentions of

the Union, as if they were judicially-established fact.

The end result is a petition which presents to the

Court hypothetical questions which bear little resem-

blance to the real issues involved.

A. The Petition Is Premature

Throughout its petition, the Union treats the case

as if Piedmont is authorized by the existing order to

remove unilaterally the third crew member from its

jet equipment and, if it does so, the Union would

have no recourse whatever. The true facts are to the

contrary. |

As has been noted, shortly before institution of this

case, the Union filed suit in the District of Columbia,

seeking an injunction “directing defendant [Pied-

mont] to operate Boeing 737 aircraft with a three

pilot crew complement . . .” until expiration of the

United Air Lines contract with the Union on March

2, 1970, five weeks hence. The objection most vigor-

ously urged by the Union upon the Court of Appeals

for the Fourth Circuit was its claim that the injunc-

tion issued by the District Court in North Carolina

unfairly authorized unilateral action by Piedmont

while at the same time it prohibited retaliatory action

by the Union. The Court of Appeals granted relief

to the Union by adding the condition, quoted above,

that Piedmont shall only operate its jets with three-

man crews.

The obvious effect of the condition attached by the

Court of Appeals was a nullification of all that por-

tion of the District Court’s injunction to which the

Union actually had objections. The aircraft are now

flying with three-man crews and at rates of pay which

were in effect before the strike and litigation. If Pied-

mont should elect to remove the third pilot from its

airplanes, the Union would be completely free. to

resume its strike as if no court order had ever been

entered. }

As matters now stand, the sole compulsion upon

the Union in the order of the Courts below is a prohi-

bition against its taking unilateral action against

Piedmont so long as the Company maintains the

12 | |

status quo ante. But the Union has consistently assert-

ed throughout all the litigation that it has no desire to

strike and has repeatedly insisted that status quo ante

conditions be maintained so that no strike would be

necessary.

For example, in the District of Columbia case,

union counsel summarized that:

“A preliminary injunction is necessary to pre-

serve the status quo until a final decision can be

made. The choice would seem to be unilateral

~ action by Piedmont with a response [or strike] by

the pilots or an orderly process by which the par-

ties can determine their respective obligations

under the [July 24] agreement, and then go for-

ward.

“The pilots have opted at this time for a pre-

liminary injunction to preserve the status quo so

that each side will be fully aware of its legal ob- .

. ligations and will be able to carry them out before’

any economic action or economic battle ensues

on the airline” €emphasis added) (App., B.S):

It appears, therefore, that what the Union actually

is seeking in its petition for a writ of certiorari is a

plotting of the course which the case shall follow

when it comes to trial on the merits in the District |

Court:below. The Union has not dealt with the ques-

tion of why this Court should be expected to review

the case at this time when the Union’s claims of

immediate injury by the injunctive order in the Dis-

trict Court have been adequately remedied by the’

| ee

ne of Appeals and when every question raised

in the case may be mooted in the District Court upon

the remand already ordered by the Court of Appeals.

There are several saiicbaelcaaes in this case which

could moot the issues upon remand. At least one such

circumstance looms at the v ry threshhold and cer-

tainly should be dealt with before any review is under-

taken. by this Court. The parties have proceeded

throughout on the theory that the case involves a

“major dispute” under the Railway Labor Act. Both

parties still contend that it is such a dispute.

The fact remains, nevertheless, that the Court of

Appeals found that “lurking in the shadows . . . is the

suggestion made by the City of Roanoke, Virginia,

amicus curiae, that the controversy is a minor dis.

‘pute” (Pet. App., p. 10a). It was decreed “therefore,

[that] the district court should not ‘decide the case

on its merits unless it is clearly shown . . . that the

controversy is still a major dispute” (Pet. App., p.

Ita). It was further directed that in the event the dis-

pute is found to be.a “minor” one, it must be resolved

~ by the System Board of Adjustment through binding

arbitration protedures provided for in the Act.

' Surely the Court should not be put to the’task of

passing upén the merits of the case when it is so

Qbvious that it may never reach a trial upon the mer-

a . f

. “We feel that we should not pass upon any of

‘_, the complicated and delicate questions involved

_in the case... upon an appeal from a meré inter-

locutory injunction and upon the inadequate

record now available, but should await the com-

pletion of the hearing in the court below, at

which time it will be possible to consider the

questions upon an adequate record and avoid

’ a fragmentary hearing. . . .”

' Sims v. Central Trust Co.,

123 F. 2d 89, 90 (4th Cir.

1941)

“[A]s the case is yet to be heard . . . upon the

facts, it is undesirable that we discuss the evi-

dence or make statements with regard thereto

which might be seized upon by the parties as in-

dicating an opinion on our part as to how the

case should be decided. The principles of law

involved are important and difficult of applica-

tion to the facts; and we should refrain from dis-

cussing them until the case to which they are to .

be applied is before us in final form.”

| Meiselman v. Paramount -:

Film Distributing Corp.,

180 F. 2d 94, 96 (4th Cir.

1950) :

B. There Is No Conflict Among The Courts Of Appeals

All of the decisions of the courts of appeals ori the

subject in question apply uniform legal principles to

various sets of facts. The petitioner has failed to ac-

cept the significance of Rule 19.1 (b) of this Court,

which makes it plain that a conflict of circuits is

created only when decisions are in conflict “on the

15 ees

same matter.” Obviously, a conflict is not created when

one court of appeals refuses to grant a preliminary

injunction on one set of facts and another court of

appeals grants a preliminary injunction on a different

set of facts. |

1. The Asserted Conflict With Second

‘ Circuit Decisions ' |

The Union contends that the Fourth Circuit's ‘de-

cision in this case confliets with Chicago, Rock Island

and Pacific R. R. v. Switchmen’s Union, 292 F. 2d 61

(2nd Cir. 1961). Such contention certainly would be

received with shock in the Fourth Circuit, since that

Court’s opinion evidenced careful study of the Chica-

go, Rock Island opinion, and expressly followed that

decision in the instant case. The Court cited the

Chicago, Rock Island decision twice, approving the

legal principles enunciated therein. But, at the sam

time, it pointed out critical factual distinctions in t

two cases. 3 |

Moreover, in the Chicago, Rock Island ease, the

Second Circuit expressly refused to pass upor/ the |

question presented in this case. In that case, bargain-

ing had actually resulted in agreement betweeyi\union

and company negotiators. Even so)\the District Court

found that a requirement of the Union’s cgnstitution

that any agreement made by the union negotiators

must be approved by a majority vote 4f the union

membership, .coupled with the ee submis-

sion of the agyeement to the union n embership with-

out recommending approval, was unlawful.

In considering the case, the Court of Appeals for

the Second Circuit hypothetically posed the question

of whether an injunction might issue in a case

where: — “(T]he claim is that although the motions

specified by the Railway Labor Act were performed,

the required spirit was lacking. Appellees argue with

force that it is as much a violation of the Railway

Labor Act to make only a token effort to comply with

its prescribed processes as to strike without even the

pretense; .. .” (emphasis added), Chicago, Rock Is-

land and Pacific R: R. v. Switchmen’s Union, 292 F.

2d 61, 67 (2nd Cir. 1961).

It would be difficult to find words which more pre-

cisely or succinctly describe the issue which is raised

in the instant case. Having found, however, that the

plaintiff's evidence did not support its “claim” in the

Chicago, Rock Island case, the Court ruled that “We

find it unnecessary here either to affirm or.to deny

that an injunction against a strike may be issued on

such a claim, ...” (emphasis added), Chicago, Rock

Island and Pacific R. R. v. Switchmen’s Union, supra,

at p. 67;

The Second Circuit went on to explain in detail

that there was.no substantial evidence in the Chicago,

Rock Island case to support the plaintiff’s claim or

the District Court’s finding that the Union there had

not bargained in good faith. The only evidence tend-

ing to support the claim was the failure of union

negotiators to recommend ratification of the negoti-

ated agreement by the Union’s membership.

That case bears no resemblance to this case, where,

A. for example, it is in effect conceded that the union

negotiators have openly admitted to Piedmont repre-

sentatives that “we have no authority to confer on

crew complement, and on this issue of crew comple-

ment our authority to negotiate has been withdrawn”

(Saunders, pp. 5, 6, §11) and have repeatedly in-

sisted that they were “bound” by the Union’s “man-

datory and compulsory policy” to refrain from bar-

gaining on the crew complement subject (Saunders,

p. 6, §11; Tadlock, p. 2, §3; Bradley, pp. 1-4, 992, 5, 7).

Further distinguishing the cases are the Union’s

statement to Piedmont that even if a two-man agree-

ment were signed, it would be rejected by the Union’s

president (Saunders, p. 6, 911) and its declaration

to its own member pilots that the authority of* its

negotiators was “extremely limited” and, in effect,

that such an agreement was blocked by mandatory

union policy (Tadlock, Exhibit C).

The Union labors at length over-its claim that a

conflict exists. because, in construing Section 7 of the

Norris-LaGuardia Act in the Chicago, Rock Island

case, the Court of Appeals for the Second Circuit

stated that a necessary prerequisite to injunctive re-

lief is a showing that there has in fact been a violation

and that is it not enough to show merely that the Act

might have been violated.

But that section of the Norris-LaGuardia-Act mere-

ly limits injunctions to cases where there are “findings

of fact by the court, to the effect — (a) That unlaw-

ae RS

ful acts ... . have been committed . . .” (emphasis

added ), Norris-LaGuardia Act 87, 29 U. S.C. §107.

The composite findings and conclusions of the Dis-

trict Court and the Court of Appeals in this case are

fully in accord both with the express language of Sec-

tion 7 and the pronouncement of the Second Circuit.

The admissions of the union negotiators noted

above were considered by the Court of Appeals to

be clear “evidence that the Union did not bargain.”

Accordingly, it construed the District Court’s order

as a ruling “that the Union failed to negotiate

in good faith as required by the Railway Labor Act”

(Pet. App., p. 6a). Furthermore, the Court of Appeals

expressly declared that “use of the by-law as an ex-

cuse for refusal to bargain . . . is not consistent [that

is, not’in compliance] with the Railway Labor Act’s

provisions . . .” (Pet. App., p. 6a). It is difficult to see

how this can be said to fall short of a finding that the

Union has violated the Railway Labor Act.

In apparent recognition that any defects in the.

findings and conclusions of the District Court were

cured by the Court of Appeals, the Union insists that

_ this Court should focus its attention exclusively upon

the language of the District Court, as if it had never

been amended or passed upon by the Court of Ap-

peals. But this Court has repeatedly turned aside ef-

forts of litigants thusly to inject it into the fact-find-.

ing processes of lower courts.

“(T]he probative sufficiency of the testimony

has the support of the district court . . . and of

. :

the circuit court of appeals. It would take some-

thing more than ingenious criticism to bring

even into question that concurrence or to detract

from its assuring strength, .. .”

Delaney v. United States, .

263 U. S. 586, 589-590 (1924),

quoted in United States v.

Johnson, 319 U. S. 503, 518

(1943)

“The petitioner asks us to reject as ‘clearly

erroneous’ the factual conclusion . . . reached

by the District Judge and accepted by the Court

of Appeals. In order to do so, we would be forced

to disregard this Court's repeated pronounce- -

ment that it ‘cannot undertake to review con-

current findings of fact by two courts below in

the absence of a very obvious and exceptional

showing of error.’ . . . For there was no ‘very ob-

vious and exceptional’ error in the conclusion of

the two courts below... .”

: Berenyi v. Immigration and

Naturalization Service;

385 U. S. 630, 635 (1967)

This presumption of validity of concurrent factual

determinatiorfs is clearly applicable to Railway Labor

Act éases. Virginian Ry. v. System Federation No. 40,

300 U. S. 515, 542 (1937); Texas & New Orleans

_ R.R: v. Brotherhood of Ry. &-S. S. Clerks, 281 U. S.

548 (1930).

What has been stated. about the Chicago, Rock Is-

_land case is also true of the Union’s claim that the

instant case is in conflict with the decision of the

Second Circuit in Pan American World Airways, Inc.

v. Flight Engineers Int'l. Ass’n., 306 F. 2d 840 (2nd

Cir. 1962). It is axiomatic, of course, that the duty

to bargain does not require concession or agreement.

The Pan American World Airways case. merely fol-

lowed that axiom in finding no refusal to bargain.

That case has no bearing where, as here, a union has

unilaterally determined in advance that there will be ~

no bargaining with respect to a bargainable issue and

has consistently and adamantly enforced its unilateral

determination.

The remaining cases as to which the Union claims

there is conflict deal, not with labor law as such, but

with the discretionary: authority of rower courts in

disputes over venue. $

2. Procedural Cases From Other Circuits

Prior to the hearing in the District Court below,

the Union moved that the case be transferred to the

District of Columbia (Motion, August 8, 1969). Such

motion was based upon venue considerations and the

Union’s contention that its case in the District of

Columbia raised issues identical to those raised in

the Company's case. :

Piedmont responded with uncontradicted proof

that its corporate existence, as well as the center of

its operations, was at Winston- Salem, North Caro-

lina; that practically all ‘witnesses who would be in-

volved in the case resided in the Winston-Salem area;

that all of the bargaining sessions with which the case

was concerned were held at that location; that for

many years grievance procedures and arbitration

cases before the System Board of Adjustment invari-

ably have been held in Winston-Salem; and that

Piedmont had not sought, and would not seek, any

affirmative relief in the Union’s District of Columbia

action (Bradley, Reply ).

It was shown to the satisfaction of the District

Court, moreover; that it was the sole\ purpose of

the Union’s District of Columbia action \to test the

Company's: right to take unilateral action\ and that

the question of whether the Union had a right to

take such action was never mentioned in the plead-

ings, or evidence, or affidavits, or arguments\in the

Union’s case. It was conceded that at the Ae of

the hearing in the District of Columbia there was no

strike by the Union and no voiced threat that a strike _

would be called. Further, it was proved that whereas

~ the Union’s action was for declaratory and injunctive

relief upon an alleged contract, the purpose of the

instant case was to test the validity of the Union’s

strike activities before it had ever made any éffort to

reach agreement with Piedmont.

Upon the basis of these considerations, the District

- Court, in the exercise of its discretion, refused to

transfer this case to the District of Columbia. The

authorities amply support that decision. :

“The transfer of pending civil cases from one

district to another is governed by 28 U.S.C.

§1404(a) which provides ‘(a) for the conveni-

ence of parties and witnesses, in the interest of

justice, a district court may transfer any civil

action to any other district or division where it

might have been brought.’ The burden of estab-

lishing that the suit should be transferred is upon

the movant and unless the evidence and the, cir-

cumstances of the case are strongly in favor of

the transfer the plaintiff's choice of forum should

not be disturbed. The transfer lies within the

sound judicial discretion of the trial judge and

his determination should not be rejected unless

the appellate court can say there has been a clear

abuse of discretion.” y ss

Texas Gulf Sulphur Co. v. Ritter,

371 F. 2d 145, 147 (10th Cir. 1967).

See also: Toti v. Plymouth Bus Co., 281 F. Supp.

897 (S.D. N.Y. 1968); Blue Diamond Coal Co. v.

United Mine Workers, 282 F. Supp. 562 (E.D.: Tenn.

1968); New York Central R. R. v. United States, 200

F. Supp. 944 (S.D. N.Y. 1961); Mazinski v. Dight, 99

F. Supp. 192 (W.D. Pa. 1951).

'. The cases cited by the Union as being in conflict

on this question certainly present no inconsistency

of a sort which could invoke the jurisdiction of this

Court on writ of certiorari. In Hilton Hotels Corp. v.

Weaver, 325 F. 2d 1010 (D.C. Cir. 1963), on the .

. * basis. of “comity” only, the Court of Appeals for the

District of Columbia Circuit deferred to the Court of

Appeals for the Third Circuit .and refused to “reex-

~ amine” the latter Court’s resolution of identical is-

sues. |

In Crosley Corp. v. Hazeltine Corp., 122 F. 2d 925

(3rd Cir. 1941), the Court of Appeals for the Third

Circuit expressly based its decision on the conclusion

that the district court, “having the power to issue [a

preliminary injunction to protect its jurisdiction]

abused its discretion in refusing to exercise that

power.” Id. at 930. Likewise, in Brotherhood of

Locomotive Firemen & Enginemen v. Central of

Georgia Ry., 411 F. 2d 320 (5th Cir. 1969), the Court

of Appeals found abuse of discretion in the district

court’s refusal to transfer the case to another district

court where the plaintiff had already secured an in-

junctive order identical to the one sued for in the

later case.

At most, those cases differ from the instant case

only in the outcome of the procedural questions pre-

sented. And, in each case, the outcome hinged, not

upon conflicting interpretations of legal questions,

but upon factual considerations peculiar to the case

itself. Thus, with its assertions that this Court should

take cognizance of such alleged “conflict,” the Union

again seeks to inject the Court into a. review of the

evidence and the inferences drawn.from it by the

Courts below..

_24

I. The Courts Below Were Not Bound By The Obiter

' Diectum Of The District Court For The ;

~ ___ District Of Columbia

As is noted in the appendix to the Union’s petition, |

the District of Columbia Court denied the Union’s

motion for an injunction enforcing the’ alleged con-_

tract for the following reasons, announced at the ~

close of the hearing: .

“<<

. Congress has in effect instructed the

Courts not to intervene in these labor disputes

unless there is some very obvious legal question,

or some legal reason for coming into them.

“T think [that] before I could step in and grant

an injunction . . . I would have to be convincéd .

that there was a definite substantial legal issue

in which the petitioner [plaintiff] had a very good

chance of success.

“I don’t find that chance of success in this

case. I am not convinced that there is a legal is-

sue left in the case. So, I am going to deny the

preliminary injunction” (Pet. App. E).

Later, that Court entered a written order and, even

though no findings of fact were made‘on the subject,

the Court adopted a so-called “conclusion of law,”

suggested by the Union, which stated that “the par- °

ties have, under the provisions of the Railway Labor

Act, engaged in good-faith negotiations . . .” (Pet.

App., p. 6d, §2).

aes

. ’The Court’s decision being in favor of Piedmont,

it is elementary, of course, that Piedmont could not

possibly appeal from reasons advanced by-the Court

for ruling favorably to the.Company. Yet, the Union

insists| that, regardless of whether or not it in’ fact

refused: to bargain with Piedmont, judicial inquiry

into the subject is forever barred by the interlocutory

dictum |of the Court in that case. Otherwise stated,

the Union is advancing the amazing proposition that

a litigant’s rights as to the merits of a: case may be

established adversely to him by recitations volun-

- teered in a preliminary order in which he has pre-

vailed and from which no appeal can be taken by him!

The reason and logic which so clearly refute the

Union’s novel contention are fully supported by num-

erous court precedents. In the first place, the doctrine

of “the law of the case” applies only where two dif-

ferent judges rule upon the identical question in the

same case, e.g., Bowles v. Wilke, 175 F. 2d 35 (7th

Cir. ), cert. den., 338 U. S. 861 (1949). But it is not

’ necessary for Piedmont to rely on that fact alone to

sustain its position.

Even if the orders of Judges Corcoran and Gordon 3

had been entered in the same case, the Union’s con-

tention could not be sustained. Judge Corcoran’s

“conclusion” on the subject of bargaining in the

breach-of-contract case was nothing more than obiter

dictum which could not serve as a bar to a subsequent

finding to the contrary. Since’at least as far back as

1821, this Court has considered that:

. , ,

“It is a maxim not to be disregarded, that gen-

eral expressions, in every opinion, are to be taken

in connection with the case in which those. ex-

pressions are used. If they go beyond the case,

they may be respected, but ought not to control

the judgment in a subsequent suit when the ©

' very point is presented for decision. The reason.

of this maxim is obvious.” |

Cohen v. Virginia,

6 Wheat. 264, 399 (1821)

See also: Osaka Shosen Kaisha Line v. United States,

300 U. S. 98 (1937); Wright v. United States, 302

U.S. 583 (1938).

Moreover, even if the question had been squarely

- presented to Judge Corcoran on a preliminary motion

such as the Union's, his interlocutory ruling would

not have barred a second order in conflict with his

first decision.

“In the absence of statute the phrase, ‘law of

the case, as applied to the effect of previous

orders on the later action of the court rendering

them in the same case, merely expresses the prac-

tice of courts generally to refuse to reopen what

has been decided, not a limit to their power.”

Messinger v. Anderson,

225 U. S. 436, 444 (1912)

“[The rule of the law of the case] is not appli-

cable here because when the case was first re-

soe - 97

manded, nothing was finally decided. The whole

ie proceeding thereafter was in fieri. .. . This was

an interlocutory order that was appealable be-

cause Congress, notwithstanding its interlocu- .

tory character, had made it appealable: 28 USCA

§1253, FCA title 28, §1253. The appellants might

* have appealed, but they were net bound to. We

think that it requires a final judgment to sus-

tain the application of the rule‘of the law of the |

case just as it does for the kindred rule of res

judicata. Compare United States v. Wallace &

Tiernan Co. 336 US 793, 800, 801, 93 L ed 1042,

1049, 1050, 69 S Ct 824. And although the latter

is a uniform rule, the ‘law of the case’ is only a

discretionary rule of practice. It is not controlling

here. United States v. United States

339 U. S. 186, 198-199, reh. den.,

339 U.S. 972 (1950)

“There is sound reason for the rule that the

decision of either the trial or appellate court in ©

granting or denying the temporary injunction

does not constitute the law of the case and will

not estop the parties nor the court as to the merits

of the case....’”

Hunter v. Atchison, T. & S. F. Ry.,

188 F. 2d 294, 299 (7th Cir. 1951 )

See also: Bowles v. Wilke, 175 F. 2d 35 (7th Cir.

1949).

28 a ae

Ill. The Decision Below Is Entirely ‘Consistent With

Principles Enunciated By This Court ‘And Is Fully

Supported By Other Court Precedents

The state of the record is such that the Union’s

position on the merits necessarily is based upon the

premise that the Union is authorized to dictate uni-

laterally in advance what a rule or condition of em-

ployment will be and then to meet with the carrier

only to advise that its directive cannot and will not be

changed, thus marking time until the calendar runs

_out on Railway Labor Act procedures — and, that

ip-all of this the Union shall be free from any legal

sanction. Court precedents uniformly refute that

proposition. : 2 /

In the landmark case construing Section 2 of the

Railway Labor Act, 45 U.S.C. §152, and directing a

carrier to “treat with” and “exert every reasonable

effort to make and maintain agreements” with the

representative of its employees, this Court stated:

“It is, we think, not open to doubt that .Con-

gress intended that this requirement [to bargain]

be mandatory upon the railroad employer, and

that its command, in a proper case, be enforced

by the courts. .. . Neither the purposes of the

later Act, as amended, nor its provisions when

read, as they must be, in the light of our decision

in the Brotherhood of R. & S. S: Clerks Case, 281

U. S. 548, 74 L. ed. 1034, 50 S. Ct. 427, supra,

lend support to the contention that its enact-

ments, which are mandatory in form and capa-

fiery, ©

"we

ble of enforcement by judicial process, were in-

tended to be without legal sanction.”

Virginian Ry. v. System

Federation No. 40, 300

U. S. 515, 545 (1937)

Very recently this Court emphasized that the duty

imposed by Section 2 First rests equally upon car-

riers and unions: — “The heart of the Railway Labor

Act is the duty, imposed by §2 First upon manage-

ment and labor, ‘to. exert every reasonable effort to

make and maintain agreements concerning rates of

pay, rules, and working conditions, and to settle all

disputes . . . in order to avoid any interruption to

commerce or to the operation of any carrier growing

out of any dispute between the carrier and the em-

ployees thereof’ ” (emphasis added), Brotherhood of

R. R. Trainmen v. Jacksonville Terminal Co., 394

U. S. 369 (1969).

This Court further emphasized that in order to ex-

haust the procedures which ultimately can lead to

authorized unilateral action: — “A party desiring to

effect a change of rates of pay, rules, or working

conditions must give advance written notice [, §6, and]

must confer, §2 Second, . . .” In addition, the Court

pointed out that “while the dispute is working its .

way through these stages, neither party may unilat-

erally alter the status quo. §§2 Seventh, 5 First, 6, 10”

(emphasis added ), Brotherhood of R. R. Trainmen v..~

Jacksonville Terminal Co., supra, at 377-378. _

;

The actual power of the Petitioning Union to en-

force its unilateral mandatory order with’ respect to

crew complements on twin-engine jets should not

be doubted — such order was tatally effective. Of the

438 twin jets now in service on the airlines, 348 are

being flown with two-man crews. But all of these

within the Union’s jurisdiction are being so operated

only because the Union earlier gave its consent and

approval. Piedmont’s principal competitors are in this

category (Saunders, p. 7, §12; Saunders Supp., p.

2, 94). Among the ninety remaining twin jets, not one |

of those covered by the Union’s edict has flown with

fewer than three crewmen since the Union’s order was

issued in 1966. |

The.Union undertakes to justify its mandatory

order with the argument that it is interested in safety

and that, as to its “revised pilot crew complement

policy . . ., there never has been any substantiated

contention that this was based on other than safety

considerations” (Pet., p..6). But that in no way justi-

fies the Union’s refusal to, bargain with Piedmont

on the subject. The carrier certainly has a legitimate -

interest in air safety. Indeed, it has no alternative.

'In controverting this assertion, Piedmont has challenged the

Union in bargaining (Bradley, p. 3, {| 7; Saunders, pp. 6, 7, {| 12,

p. 8, § 15), and throughout this case, to justify its discrimination

between the twin jets on which it has agreed to place two crew-

men and those which it has refused to fly with less than three

crewmen. That challenge has been ignored a as

In regulating safety in air commerce, Congress ad-

monished the Federal Aviation Agency that:

“In prescribing standards, rules, and regu-

lations, and in issuing certificates under this

subchapter, the Administrator shall give full

consideration to the duty resting upon air car-

riers to perform their services with the highest

possible degree of safety in the public interest”

(emphasis added). :

_ Federal Aviation Act of 1958,

( §601(b), 49 U.S.C. §1421(b)

Congress certainly did not intend to permit the -

Union to set itself up as a dictator of air safety poli-

cies.

“The F ederal Aviation Act of 1958 (49 US.

C.A. §§1301-1542), imposed upon the [Admini-

strator] the duty and responsibility of promul-

gating rules and regulations to provide ade-

quately for the highest possible degree of safety

in air commerce. The Administrator, is directed

to exercise and perform his powers and duties

under the Act in such manner as ‘will best tend

' to reduce or eliminate the possibility [emphasis

by the Court] of, or recurrence of, accidents in’

air transportation.’ 49 U.S.C.A. §1421(b)” (em-

—_ — Air Line Pilots Ass'n. v.

Quesada, 182 F. Supp. 595,

598 (S.D.N. Y.), aff'd., 276 F.

2d 892 (2nd Cir. 1960)

32 '

Although the Federal Aviation Agency has auth-

orized operation of all twin jet aircraft in question

with two men and has directed that any additional

crewman, shall not be assigned any duties other than

monitoring the company radio, the Union argues that

-it is free to bargain for more stringent safety policies

than are provided for by that Agency. That may: well

be true, but the point is that the Union refused to

bargain on the subject — and its right to bargain in

no way excuses its refusing to do so. —

A primary defense of the Union is its claim that

._ the procedures of the Act were “fully exhausted” by

its attendance at bargaining sessions with Piedmont,

notwithstanding its flat refusal to consider any al- .

_ternative to its mandatory policy during these meet-

_ ings. It is elementary, of course, that perfunctory

- x gestures do not fulfill the good-faith. bargaining re-

quirements of the Act.

“To ‘effectuate the purposes of the [Railway -

Labor] Act.and to prevent a mockery of its re- —

quirements such efforts [to resolve the dispute]

must be: ‘reasonable and made in good faith and

not simply to satisfy perfunctory compliance.”

Long Island R. R. v..

Brotherhood of R. R. Trainmen,

“ 185 F. Supp. 356, 358 (E.D. N.Y.

_ 1960)

3 a ee

“If compliance with the [Railway Labor] Act

need only be perfunctory; the congressional man-

date would be defeated and: the aia of the

Act rendered nugatory.” ‘|

‘Pan American. World Airways, Inc.

v. Brotherhood of Ry. and

S. S. Clerks, 185 F. Supp. 350,

353 (E.D. N.Y. 1960) »

“The bargaining required by the Act dots not

mean mere talk withthe purpose of avoiding

agreement, but a, good faith effore- to. reach

agreement. .

_ N atonal Labor felonies Board v.

Darlington Veneer Co., 236 F. ad 85,

88 (4th Cir. 1956)

“(T]he duty’ to bargain in sie faith is not:

satisfied by merel? meeting with union represen-

tatives to inform them that the employef cannot °

or will not change its position.” |

National Labor Relations Board v.

Israel Putnam Mills, 197 F. 2d 116,

117 (2nd Cir. 1952) ~.

“Collective bargaining means something more |

_than mere talk by those who have decided in ad-

vance not to bargain at all with respect to so.vital

a matter as the rate of wages and to reserve to

. " .: 0, =,

Legions of cases have consistently held this to be

true even under the less demanding bargaining re-

“quirements of the National Labor Relations Act.

themselves the right to control same by unilateral

action. National Labor Relations Board v.

| Berkley Machine Works & Foundry

Co., 189 F. 2d 904, 907 _

(4th Cir. 1951)

“The Board's position is that an ‘employer who

insists upon reserving the right to act unilaterally

and of its own will alone upon matters involving

legitimate collective bargaining and denies the

employees any contractual provision for oppor-

tunity to bargain collectively with regard thereto

thereby refuses to bargain collectively within the

meaning of the Act.” 3

Singer Mfg. Co. v. National Labor

Relations Board, 119 F. 2d 131, 136

(7th Cir. 1941)

“Applying the rule here, we think the circum-

stances of this case support the Board’s finding

that the employer, while freely conferring, did

not approach the bargaining table with an open

mind and purpose to reach an agreement con--

sistent with the respective rights of the parties.”

Majure v,. National Labor Relations

eee Board, 198 F. 2d 735, 739 (5th Cir.

Ae A 1952). |

Finally, it is argued by the Union that the Norris-

LaGuardia Act. has placed *the’ Union beyond the

reach of the courts. Such argument has been refuted

“completely and repeatedly in court precedents.

~ ¥- @&

“We hold that the Norris-LaGuardia Act can-

_ not be read alone in matters dealing with railway |

labor disputes. There must, be an accommodation

** of that statute and the Railway Labor Act so that

‘the obvious purpose in the enactment of each .

is preserved. ” : |

“(T]he specific provisions of the Railway Labor

Act take precedence over the more general pro-

visions of the Norris-LaGuardia Act.

“<e

Our conclusion is that the District Court has »

jurisdiction and power to issue necessary injunc-

tive relief orders [to enforce compliance with the

requirements of the Railway Labor Act] notwith- :

standing the provisions of the Norris-LaGuardia

Act’” (brackets are the Court’s, emphasis add-

ed). Brotherhood of R. R. Trainmen

v. Chicago River & Indiana R.R.,

353 U.S. 30, 40, 42 (1957)

These principles were reconfirmed in Order of R. R.

_..Telegraphers v. Chicago and North Western R. R.,

362 U. S. 330 (1960), where the Court stated: - _

“[A] strike could be enjoined to prevent a plain

violation of a basic command of the Railway

Labor Act ‘adopted as a part of a pattern of labor

v. Chicago and North Western

R. R., supra; at 339°

Pa a

Cases from the courts of appeals have followed

and amplified the pronouncements of this Court deal-

ling with the subject of accommodation of these two

Acts. -

“That principle of accommodation means that

actions to enjoin violations of the Railway Labor

Act may be maintained without regard to Sec-

tion 4 of the Narris-La Guardia Act... . That is

the conclusion of other courts which have con-

sidered the matter, and we agree. The point is,

simply that Congress did contemplate actions

to effectuate the Railway Labor Act by enjoining

violations. That purpose would be utterly de-

feated if the federal court actions involved were

subject to Section 4 of the Norris-La Guardia Act,

which had provisions for withholding injunc-

tions in labor disputes reflecting entirely differ-

ent objectives” (footnotes omitted, emphasis

added ). Brotherhood of R. R. Trainmen

v. Akron & Barberton Belt R. R..,

385 F. 2d 581, 613-614 (D.C.

Cir. 1967), cert. den.,

390 U. S. 923 (1968) ~

“It is not here disputed that Norris-La Guardia

Act will not apply to preclude injunctive relief in

cases in which the acts to be enjoined are in vio-

lation of the Railway Labor Act. .. . Whether or

not any provision of the Railway Labor Act had

been violated by either or both of the opposing

parties, was and is precisely the subject of the

consolidated merits case. . . . Certainly, as noted,

if the strike was so illegal, Norris-La Guardia Act

“would not apply to deprive the District Court of

jurisdiction to enjoin it” (footnotes omitted).

. * Brotherhood of Locomotive

Firemen and Enginemen v. Bangor

& Aroostook R. R., 380 F. 2d 570,

583 (D.C. Cir. 1967)

“It is well settled that injunctive relief may be

granted to vindicate the processes of the [Rail-

way Labor] Act regardless of the provisions of

the Norris-La Guardia Act.”

Pan American World Airways, Inc.

v. International Brotherhood of

Teamsters, 275 F. Supp. 986, 999

(S.D. N.Y. 1967), affirmed on the

basis of the opinion below sub.

nom., Brotherhood of Ry. Clerks v.

Pan American World Airways, Inc.,

404 F. 2d 938 (2nd Cir. 1969)

Accord: Pennsylvania R. R.’v. Transport Workers

Union, 191 F. Supp. 915, 921 (E. D. Pa.), aff'd., 280

F. 2d 343 (3rd Cir. 1960); Chicago, Burlington &

Quincy R. R. v. Railway Employes’ Dept., mai Supp.

—,60 LC 910, 071 (D.D.C. 1969); Western Air Lines,

Inc. v. Flight Engineers Int'l. Ass’n., 194 F. Supp. 908,

910-911 (S. D. Cal. 1961). See also, Norfolk & Ports-

mouth Belt Line R. R. v. Brotherhood of R: R. Train-

men, 248 F. 2d 34, 45-46 (4th Cir. 1957); Southern

Ry. v. Brotherhood of Locomotive Firemen and En-

ginemen, 223 F. Supp. 296, 305.¢M. D. Ga. 1962),

aff'd., 324 F. 2d 503 (5th Cir. 1963); Pennsylvania

R. R. v. Transport Workers Union, 202 F. Supp. 134,

137 (E. D. Pa. 1962); American Airlines, Inc. v. Air

Line Pilots Ass’n., 169 F. Supp. 777, .783-789 (S. D.

N. Y. 1958); and American Airlines}Inc. v. Transport

Workers Union, 202 F. Supp. 806, nichts (S. D.

N. Y. 1962).

The Union argues that the decision here is incon-

sistent with Brotherhood of R. R. Trainmen v. Toledo,

Peoria & Western R. R., 321 U. S. 50 (1944), where,

applying the equitable doctrine of “clean hands,” an —

injunction was denied because the carrier had re-

jected arbitration proferred by the National Media-

tion Board and accepted by the union. But there is

here no such inconsistency with that ruling. In the

Toledo case, it was admitted on all sides that all of

the procedures of the Railway§$Labor Act had been

fully exhausted by the parti€eS acting in good faith.

That the Toledo holding has no application here is

further shown by the holdings in the Akron & Bar-

berton. Belt R. R. cases, supra.

. [L]ack of clean hands may be overcome

by a balancing of interests, particularly where it

is the public interest involved. In a particular

case the District Court might conclude that the

question of the applicability of Section 8 was

doubtful, would require time to explore, and that

39 .

the restraining order should issue forthwith to

avoid jeopardizing the Railway Labor Act. Such

_ approaches would recognize that Section 8 of the

Norris-La Guardia Act has some applicability,

and is a legislative instruction that weighs heav-

ier in the scale than the clean hands doctrine

taken merely as a general equity maxim, yet is.

overborne by requirements of the Railway Labor

— Brotherhood of R. R. Trainmen

v. Akron & Barberton Belt R. R.,

supra, at 614

In the injunctive order in the case at bar, the Dis- .

trict Court detailed a number of ways in which the-

general public was suffering, and would continue to

suffer, “irreparable injury and damage” if the strike

were not enjoined (Pet. App., pp. 3b-4b). Indeed, in

Chicago, Burlington & Quincy R. R. v. Railway Em-

ployes’ Dept., — F. Supp. —, 60 LC 910, 071 (D. D.C.

1969), the Court held that public interest required

that the strike be enjoined at the behest of the car-

rier, notwithstanding that it was found as a fact that —

such carrier had bargained in bad faith. But in the

present case, there is not even any contention that

Piedmont failed to*bargain in good faith.

Lol

CONCLUSION 3

Upon the basis of all the foregoing, the Respondent,

Piedmont Aviation, Inc., urges that the Petition for

Writ of Certiorari be denied. _

Respectfully submitted,

WHITEFORD S. BLAKENEY

1410 NCNB Building /

Charlotte, North Carolina 28202

J. W. ALEXANDER, JR.

BROWN-HILL BOSWELL

Attorneys for the Respondent

APPENDIX

- EXCERPT FROM PAGE 108 OF TRANSCRIPT

OF PROCEEDINGS BEFORE THE UNITED

_ STATES DISTRICT COURT FOR THE MIDDLE

~ GUST 13-14, 1969

(P. 108)

rah gage Both of you come up here—I'm

inclined to — if I can get the public some relief about

this thing — | can understand their Position, you

EXCERPTS FROM PAGES 3 AND 18 OF TRAN-

SCRIPT OF PROCEEDINGS BEFORE THE

UNITED ‘STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA ON JULY 16,

1969 , i \

<P. 3)

Basically, aside from the Railway Labor Act statu-

_tory overtones, we have here a suit based upon

breach of contract. The pilots claim that they have ~

. an existing agreement with Piedmont-which re-

quires the carrier to continue with the three pilot

crew complement on B-737 aircraft for the duration

of the present collective bargaining agreement.

The Pilots assert that this three-pilot crew is re-

quired by virtue of a decision in an arbitration be-

tween ALPA and United Air Lines which Piedmont

- and ALPA agreed to abide by in their agreement.

(P. 18)

A preliminary injunction. is necessary to preserve

the status quo until a final decision can be made. The

choice would seem to be unilateral action by Pied-

-mont with a response by the Pilots er an orderly proc-

ess by which the parties determine their respective

obligations under the agreement, and then go for-

ward. °

The pilots have opted at this time for s a preliminary

injunction to preserve the status quo so that each

side will be fully aware of its legal obligations and

will be able to carry them out before any economic

action or economic battle ensues on the airline.

“

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Be - yo ne oe se er lt —— nt Ee. i Se

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